Ellis et al

Filing 89

ORDERED that third-party Ds' # 73 Motion to strike is GRANTED. The clerk of court is directed to STRIKE third-party Ps' # 72 Amended complaint. FURTHER ORDERED that third-party Ds' # 81 Motion to dismiss is DENIED as moot. Signed by Judge Larry R. Hicks on 11/8/2011. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 *** ) MELINDA ELLIS, ) ) Plaintiff, ) ) v. ) ) ALESSI TRUSTEE CORPORATION; et al., ) ) Defendants. ) ) 3:09-CV-0428-LRH-RAM ORDER 14 15 Before the court is third-party defendants’ motion to strike third-party plaintiff’s first 16 amended complaint. Doc. #73.1 Third-party plaintiffs filed an opposition (Doc. #78) to which third- 17 party defendants replied (Doc. #79). 18 I. 19 Facts and Background In 2003, defendant/third-party plaintiff Alessi Trustee Corporation (“ATC”) was formed as 20 a separate and distinct entity from defendant/third-party plaintiff Alessi & Koenig, LLC 21 (“Koenig”). ATC contacted then State of Nevada Department of Business and Industry’s Financial 22 Institutions Division (“FID”) commissioner L. Scott Walshaw (“Walshaw”) to inquire whether 23 ATC required a license to perform non-judicial foreclosure work in Nevada. In a February 20, 2003 24 letter, Walshaw stated that under NRS § 649 et seq., he believed that ATC did not need to obtain a 25 26 1 Refers to the court’s docket number. 1 license. Third-party defendant Stephen Kondrup (“Kondrup”) concurred in the exempt status when 2 he became a deputy commissioner and, during his tenure, repeatedly stated that there was no 3 problem with ATC conducting non-judicial foreclosure proceedings because ATC was not a 4 community manager which required licensing. Thereafter, ATC began performing non-judicial 5 foreclosure work. 6 In 2005, NRS Section 649 was amended to remove various licensing exemptions. Amended 7 NRS 649.020(3)(a) provides that a community manager is anyone “engaged in the management of 8 a common-interest community if the community manager, or any employee, agent or affiliate of the 9 community manager, performs or offers to perform any act associated with the foreclosure of a 10 lien.” In light of the 2005 amendments, Kondrup and FID investigated ATC’s collection operations. 11 On September 12, 2008, Kondrup and FID issued a cease and desist order against ATC finding that 12 they were a community manager subject to licensing. 13 On July 15, 2009, underlying plaintiff Melinda Ellis (“Ellis”) filed a class action complaint 14 against ATC and Koenig alleging that defendants, acting as a collection agency for a homeowner’s 15 association, violated the Fair Debt Collection Practices Act. On August 10, 2009, defendants filed a 16 third-party complaint against third-party defendants Kondrup and FID alleging that the 17 September 12, 2008 cease and desist order directing ATC to cease and desist all collection 18 operations was improper. Doc. #7. In response, third-party defendants filed a motion to dismiss the 19 third-party complaint (Doc. #34) which was granted by the court (Doc. #53). 20 More than a year later, on June 23, 2011, third-party plaintiffs filed an amended third-party 21 complaint without leave of court. Doc. #72. Thereafter, third-party defendants filed the present 22 motion to strike. Doc. #73. 23 /// 24 /// 25 /// 26 2 1 2 II. Discussion Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, the court may strike a filing 3 for “any redundant, immaterial, impertinent, or scandalous matter.” FED . R. CIV . P. 12(f). In their 4 motion, third-party defendants argue that the amended third-party complaint is an impertinent filing 5 because it was filed without leave of court. See Doc. #73. The court agrees. 6 Pursuant to Rule 15 of the Federal Rules of Civil Procedure, a party may amend its pleading 7 after a responsive pleading has been filed only with the opposing party’s written consent or by 8 leave of court. FED . R. CIV . P. 15(a)(2). Here, neither requirement was met. Further, no motion to 9 amend was ever filed by third-party plaintiffs, nor was a copy of the proposed amended third-party 10 complaint provided to the court for its review in accordance with LR 15-1. Accordingly, the court 11 shall grant third-party defendants’ motion and strike the amended third-party complaint. 12 13 IT IS THEREFORE ORDERED that third-party defendants’ motion to strike (Doc. #73) is 14 GRANTED. The clerk of court is directed to STRIKE third-party plaintiffs’ amended complaint 15 (Doc. #72). 16 17 IT IS FURTHER ORDERED that third-party defendants’ motion to dismiss (Doc. #81) is DENIED as moot. 18 IT IS SO ORDERED. 19 DATED this 8th day of November, 2011. 20 21 22 __________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE 23 24 25 26 3

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